Should HIV carriers who have unprotected sex be imprisoned?

Vincent Walkem, a resident of Toronto was charged with infecting two women without telling them that he was HIV-positive. The 30-year-old man described himself in court as "extremely selfish" but not "a monster" for having sex with two women while ignoring orders from health officials to tell his sex partners he was infected with the virus that causes AIDS.

Walkem had earlier pleaded guilty to two counts of aggravated sexual assault and was now speaking during his sentencing hearing. With his victims looking on, Walkem explained to a packed courtroom that he thought AIDS was a "manageable, chronic disease," information he said he learned from "the community" and a doctor.

I don’t know what doctor he spoke to but I am confident that the doctor would have told him that HIV is a communicable disease and that he was not to have unprotected sex with a partner and that if he did insist on having unprotected sex with a sexual partner, he was to advise his partner that he was HIV positive.

His lawyer, Graham Clarke, asked him why he never told one victim, then 18 while he was 26, about his condition. He replied, "There's nothing I could say to explain or justify my actions," I wished it had never happened. My own sense of insecurity clouded my judgment. Every day I wanted to talk to her about it. The days turned into weeks, the weeks to months. I have no excuse."

He’s right. There was no excuse for him continuing to have sex with his victim and not tell her that he was HIV positive.

During his sentencing hearing, Walkhem went on to tell the court he has changed following his arrest, explaining that his eventual goal is to seek counseling "to figure out why I made these terrible decisions." But that didn't impress the judge so the judge told Walkem that his new outlook on life "had a hollow ring to it," adding that perhaps he should have been doing that before he was arrested.

Under cross-examination from the prosecutor, Walkem admitted he was "reckless ... callous... only looking out for himself" when he had sex with the two women but never told them about his condition. "You knew every time you had unprotected sex you had done something very risky," Walken agreed with the prosecutor that he was having sex with the women while taking medication daily for his condition, and was also showing symptoms of the virus, such as enlarged and mobile nodes in his body and oral ulcers, a sure sign that he was HIV positive.

The woman, now 23, later learned from one of Walkem's co-workers at a west end clothing store that he was HIV-positive. Earlier, she told the court she was stunned at learning the bad news, later discovering that she, too, had the virus that she obviously got from Walkem. She is now on a steady regimen of drugs and continual blood tests that has left her weak and at times depressed. She gave up a dream of becoming a dancer and is in university pursuing a new career. Fortunately for the other woman, she wasn’t infected.

Prosecutor Mary Humphrey asked Justice Arthur Gans to send Walkem to prison for eight years while his own lawyer asked the judge to give him conditional sentence, which usually means house arrest. The judge, told the court that he was not in a "conditional sentence state of mind. On January 19th, 2007, the judge sentenceed Walkem to prison for four years and eight months.

Trevis Smith, a former footballer of the Saskatchewan Roughriders was infected with HIV and didn't disclose this information when he had sex with two women. He was found guilty of aggravated assault and sentenced to prison for five and a half years.

There is another person I wish to tell you about. I cannot give you his name as it cannot be published in order to protect the identity of his 5-year-old victim who is in fact, his own daughter.

Last October, Superior Court Judge Bonnie Croll convicted the 47-year-old former labourer of sexual assault causing bodily harm and sexual interference for "despicable conduct" that may make his daughter infertile.

In 2002, the year he tested positive for AIDS, he was near death and had to be hospitalized for one and a half years.

Although the little girl was suffering from a painful urinary problem in July 2001, he didn't tell his wife he had gonorrhea, which delayed potential treatment for his young victim.

Det.-Const. Ann-Marie Tupling charged the pedophile in 2002 after tests showed that his daughter had the same strain of gonorrhea as him. He claimed the girl might have contracted his venereal infection from sitting on the home's toilet seat, sharing towels, or in other ways. Yeah, sure. If you believe that explanation, I have a bridge I want to sell you. It’s in Brooklyn.

The prosecutor asked for a sentence of ten years whereas his defence lawyer, Allan Lobel asked for a two-year conditional sentence, which means house arrest, for his client.

The questions that the two judges in these two cases must ask themselves is; “Is a conditional sentence appropriate?

Between 2003 – 2005 three African men were convicted for knowingly transmitting HIV to their female sexual partners and these comprised the first of such convictions in England. All three were charged with committing Grievous Bodily Harm (GBH) in England. These cases were brought under the Offences Against the Person Act of 1861.

Mohammed Dica was convicted on 14 October 2003 of “unlawfully and maliciously inflicting grievous bodily harm” on two women by infecting them with HIV. He was sentenced to a total of eight years imprisonment.

In May 2004, Feston Konzani was sentenced to ten years for infecting three women with HIV.

In May 2005,Paulo Matias pleaded guilty to the charge of reckless grievous bodily harm for infecting one woman with HIV and was sentenced to three and a half years in jail. He died in January 2006 from complications caused by HIV.

In my respectful opinion, I believe that people who have unprotected sex with sexual partners while they are HIV positive and choose not to disclose this information to their partners, are not worthy of sympathy or mercy whatsoever. The public has a right to be protected from these people and since they choose to infect their victims with reckless disregard for their health and wellbeing, they deserve to be imprisoned for a very long time.

Unfortunately, not all the courts feel the way I do on the issue of sentencing. For example, Michael Davis, 47, a Toronto financial services worker, pleaded guilty to aggravated assault in Superior Court. Although he had known he was HIV-positive since 1993, he repeatedly assured his male lover in the summer of 2005 that he was not. Justice Faye McWatt imposed an 18-month conditional sentence on Davis, ordering him to spend the first six months under house arrest while allowing him to attend work, classes and church. The Crown prosecutor Kate Matthews had sought one year in jail and one year's probation. Defence lawyer Charles Barhydt had asked for a conditional sentence between 18 months to two years less a day.

Mary Mallon ( September 23, 1869 – November 11, 1938), also known as Typhoid Mary, was the first person in the United States to be identified as a healthy carrier of typhoid fever. Over the course of her career as a cook, she infected 47 people, three of whom died. Her fame is in part due to her vehement denial of her own role in causing the disease, together with her refusal to cease working as a cook after being formed that she was carrying the disease. She was forcibly quarantined twice by public health authorities, and died in quarantine.

Mary Mallon seemed a healthy woman when a health inspector knocked on her door in 1907, yet she was the cause of several typhoid outbreaks. Since Mary was the first "healthy carrier" of typhoid fever in the United States, she did not understand how someone not sick could spread disease. You will note that Vincent Walkem came up with a similar excuse by claiming that he though his disease was manageable.

If the public had shown Mary Mallon some sympathy during her first period of confinement because she was an unwitting typhoid carrier, all of the sympathy disappeared after her recapture. This time, Typhoid Mary knew of her healthy carrier status - even it she didn't believe it; thus she willingly and knowingly caused pain and death to her victims. Using a pseudonym made even more people feel that Mallon knew she was guilty.

Mallon was again sent to North Brother Island to live in the same isolated cottage that she had inhabited during her last confinement. For twenty-three more years, Mary Mallon remained imprisoned on the island. In December 1932, Mary Mallon suffered a large stroke that left her paralyzed. She was then transferred from her cottage to a bed in the children's ward of the hospital on the island, where she stayed until her death six years later, on November 11, 1938.

In Canada, roughly 58,000 people are HIV-positive. According to the Canadian Public Health Agency, 16,000, or 26 per cent, don't even know they carry the virus. Dr. Kelly MacDonald, director of the HIV research program at the University of Toronto, said a significant proportion of new infections result from people not knowing their "exposure status."

Obviously, if carriers of the disease don't know that they carry the virus within them, then they shouldn’t be charged with any crime if they inadvertently infect a sexual partner while having unprotected sex.

In criminal law, individuals are held responsible through penal sanctions for their actions that have been deemed to be unlawful. The emphasis is on individual responsibility for his/her deeds and the establishing of the moral culpability that underlies the claim for criminal culpability. For effective and convincing HIV/AIDS programming, it must be stressed that for all people there exists and remains a responsibility toward themselves and towards others to possibly minimize the risk of further transmission.

Criminal liability for recklessness should only be imposed, whether for transmission or exposure, in the event that the defendant actually knew (or believed) that he or she is infected with HIV or another STI.8 (Sexually Transmitted Infection)

There could be specific situations in which a sexually active young person has not been made aware of his or her HIV infection by parents or guardians. In such cases, evidently the young person himself or herself could not be held criminally liable for transmission or exposure because of the lack of requisite personal knowledge.

The principle of lex certa requires that, before imposing punishment, the law must clearly delineate which conduct is prohibited;

One argument against criminalizing recklessness is that it exacerbates the disincentive to HIV testing: “A person who does not know his HIV positive status cannot, legally, be reckless because he cannot, logically, be aware of the risk of transmitting HIV to his partners(s).”

The criminal law should not punish those persons who, even if they do not disclose their HIV/STI-positive status to a sexual partner, nonetheless act responsibly and in accord with standard public health advice by taking precautions to reduce the risk of transmission. Practicing safer sex, including the use of a condom for penetrative anal or vaginal sex, or engaging only in activities that carry a similarly low or even lower risk, should preclude a finding of recklessness on the part of the defendant.

In some cases, prosecutors and courts have recognized that criminalization in such circumstances is unwarranted. In a Canadian case, ( R. v. Edwards Nova Scotia Supreme Court ) the prosecution acknowledged that unprotected oral sex is conduct that carries only a low risk of HIV transmission and would not be the basis for a prosecution.

Does a general agreement to engage in sex, particularly unprotected sex, with all the attendant risks, suffice? Or, in order to be legally valid and preclude a criminal charge for transmission or exposure, must a person’s consent to sex, particularly if unprotected, be specifically informed by the knowledge that his or her partner has HIV or another STI?

There is widespread awareness that unprotected sex carries a risk of a range of consequences, from HIV to other STIs to pregnancy in some cases. It would be however unwarranted to criminalize the individual who transmits HIV where those who have been infected are, despite non-disclosure, well aware of the potential harm to which they may be subjecting themselves by agreeing to have sex with a person they know or believe carries the risk of transmission. However, I strongly doubt that any person would willingly have unprotected sex with a sexual partner whom they know or even suspect is HIV positive so the reasoning that the carrier shouldn’t be punished becomes rathert academic.

There is a distinction between active deceit about one’s HIV/STI-positive status and simple non-disclosure. Active deceit undermines the autonomy of the sexual partner who seeks to act, albeit imperfectly, to minimize his or her risk by basing his or her conduct on the information about the person’s HIV status that has been (untruthfully) provided. This would, therefore, be conduct that could legitimately attract criminal penalty.

It is critical that a putative defendant’s individual circumstances, such as age and understanding of the nature of infection and of risk, be taken into account when deciding whether to prosecute. It is not in the public interest to prosecute those HIV positive people who are young, mentally ill, vulnerable (for social, cultural or other reasons), or totally ignorant of the effects of the disease on the human body.

The law that HIV/STI transmission or exposure may only constitute a criminal offence in the absence of consent on the part of the complainant – that is, the absence of consent is a requisite element of the offence. Consequently, the onus is on the prosecution to prove the absence of consent on the part of the complainant; the burden of proving consent does not lie on the defendant. There needs to be a clear understanding of this important point on the part of police, prosecutors, the defence bar, and the courts.

The Supreme Court of the Netherlands has ruled in a case involving unprotected anal and oral sex, that there was not a “substantial” risk of transmission, and therefore a prosecution for recklessness could not succeed. If that is so, then why are so many homosexual victims of this disease dying from AIDS?

It is interesting to note that merely having oral sex with an infected partner doesn’t necessarily mean that the disease will be successfully transmitted. It may very well be transmitted but once the virus enters the stomach, the hydrochloric acid, the strongest acid known to Man will kill off the virus so in effect, the transmission into the body will not be successful.

In a criminal prosecution involving unprotected oral sex and protected vaginal sex, a New Zealand court observed that the risk of HIV transmission through oral intercourse without a condom “is so low it does not register as a risk” Since the legal duty “is not to take failsafe precautions”, but to use “reasonable”precautions and care, the court was satisfied that the defendant did take reasonable precautions and care, and acquitted him of the charge of criminal nuisance.

There is evidence that, following diagnosis, a significant proportion of people living with HIV do act in ways to reduce the risk of transmission to sexual partners. One factor strongly associated with such behaviour change is having received good-quality voluntary counseling and testing; hence the importance of ensuring access to such services, and to other support services that can assist in addressing underlying factors that may contribute to risk behaviors.

Of course, many carriers of the disease may not want to tell their doctors that they suspect that they are HIV positive because once they are tested and discovered to be carrying the disease, the doctor will warn his patient that his patient is not to have unprotected sexual relations with his sexual partner. Having been warned, the carrier is then faced with the problem of having unprotected sex and keeping the information about his disease from his sex partner, knowing that if found out, he will risk imprisonment.

Making HIV testing a routine part of any doctor's visit is at the heart of a debate in Canada's medical community, which is desperate to reduce the number of people who are infected with the virus but don't know that they are carrying it in their bodies.

With "universal testing" patients would have to opt out of being screened for HIV during a physical or regular blood work. Taking a detailed sexual history, doing a risk assessment and conducting pre and post-test counseling would no longer be mandatory.

The debate hinges on a single point. "It becomes an issue of weighing people's rights to privacy versus their rights and obligations to society. You can have your privacy and have HIV and die from it and if you do, your privacy killed you because you didn’t seek treatment.

The issue of whether to implement universal testing in this country was a hot topic in September when U.S. health authorities recommended all Americans between 13 and 64 be tested when they go for a check up.

It was brought back into the spotlight this week after Toronto physician Brian Cornelson called for such widespread testing during the sentencing hearing of Vincent Walkem.

Current practice for HIV screening in Ontario involves taking a detailed risk assessment and sexual history from the patient, getting verbal consent and conducting pre- and post-test counseling. It is also problematic in that patients have to initiate the process by requesting the test.

It is conceiveable that people don't ask to be tested often enough thinking they aren't at risk. They may not disclose important details of their sexual history. Some don't seek testing believing, in error, blood work they've had in the past would reveal if in fact they carry the virus.

Since a positive result is no longer tantamount to a death sentence, testing speeds up treatment and reduces transmission of the virus to others. Making HIV testing as common as screening is for high cholesterol, will help reduce the stigma attached to AIDS. There shouldn’t be any real concern about their problem being publially disclosed as they can be tested anonymously at a clinic whereas their family physicians are required to report positive results and infected individuals to the Canadian Public Health Agency.

People carrying the disease shouldn’t necessarily be ashamed because this disease can be transmitted to them by a loved one who doesn’t know that he or she is HIV positive. Not all carriers are homosexuals or frequent prostitutes, although these two groups of people are more prone to carrying this disease than the average citizen.

The World Health Organization (WHO) have stated that Policies governing police conduct should prohibit the release of information about a person suspected or accused of HIV/STI transmission or exposure, either to the media that is aimed at soliciting additional complaints unless that person is convicted. Such solicitation is particularly inappropriate when a complaint that has been received does not itself provide reasonable grounds to believe any offence has been committed.

It goes on to say that policies governing police and prosecutors must clearly prohibit police officers or prosecuting authorities from making public comments about the defendant that are intended, or can reasonably be foreseen, to prejudice the right to a fair trial. This includes statements that: misstate known facts regarding HIV/STI transmission or disease; exaggerate or misrepresent the evidence known to police and prosecutors; exaggerate or misrepresent an offence with which the defendant has been charged; or appeal to or provoke racist, sexist, homophobic or other stereotypes or prejudices in relation to either the defendant or the complainant. Policies governing police should also prohibit any member of the investigating police force from publicly calling for prosecutors to proceed with a prosecution in a particular case, and should prohibit police officers from commenting publicly on a case once the decision has been made by prosecuting authorities to proceed with the matter before the courts. The police should have clear policies and protocols ensuring that the conduct of legal proceedings is not tainted by publishing misinformation about HIV/AIDS and bias towards defendants who have HIV/AIDS, so as not to prejudice the defendant’s right to a fair trial.

Victims who have been infected with HIV/AIDS who are testifying in court are pretty well guaranteed that their identity and privacy will be protected in legal proceedings in which information on these matters will be raised. The government should ensure that laws and policies governing the conduct of legal proceedings include provisions for courts to protect the privacy of the victims by ordering the use of a pseudonym for proceedings, sealing the court record of proceedings, permitting proceedings in camera, imposing a publication ban on details that would identify the victims, and imposing prohibitions on court personnel from disclosing information ordered to be kept confidential.

Anyone having sex with an HIV-positive partner has a 1 to 3 per cent chance of being infected so all persons who have sex with strangers should be wary and not participate in unprotected sex with them.